Cross-border Freelancing and UK citizens living in the EU after 2020
The EU’s recently published guidelines to the Withdrawal Agreement with the UK say British citizens who live in Europe will no longer be permitted to work across borders. What this means and what can be done about it.
What has happened?
The EU/UK Withdrawal Agreement protects the rights of UK citizens living in Europe following the UK’s departure. During the negotiations before Brexit, Britain and the EU couldn’t agree on the level of freedom of movement allowed to UK citizens resident in the EU. The question was postponed to the current post-exit trade negotiations.
Recently, the EU Commission published its Guidance Notes to the Withdrawal Agreement including Article 2.13.1 Article 25(1) (See below). Though not yet legally binding, this nevertheless states that when the transition period ends on the 1st January 2021 self-employed UK freelancers based in the EU will not count as “frontier” workers able to provide cross-border services to several other EU countries.
Self-employed UK nationals legally resident in the EU, appear only to be allowed to supply cross-border services to one EU27 State providing you don’t also work, a) in the State in which you reside, or b) provide services to any other of the EU26 States.
The EU Commission here mirrors the provisions made for ordinarily employed UK citizens. Working across borders is a right enjoyed by being a member of the Single Market which the UK may have left, but UK nationals living and working in it have not.
What this could mean
Currently, there are around 440 NUJ members based in the EU, most of whom are UK nationals and many of whom are freelancers. It is often standard practice to work across EU borders. Often on a daily basis.
The Guidance Notes suggest UK freelancers based in the Netherlands could not:
- Cover stories in EU countries outside the Netherlands. A UK photographer could not cross into Belgium, shoot a news picture and then sell it to the Dutch photo agency ANP.
- Provide any story to titles in EU countries outside the Netherlands, a news picture in Dam Square could not be sold to Le Monde or Der Speigel but could to the New York Times or the Guardian.
- Provide any Dutch subject matter, via EU based agencies outside the Netherlands, even to Dutch clients. The photographer could not make a portrait of a Dutch businessman in his own Dutch company if his marketing department happened to employ a Belgian photo agency to provide that picture.
What should we do?
The NUJ is currently looking at the legal position and surveying its EU-based freelancers who may be affected. We are seeking legal clarity on the Guidance Notes, in particular on: Whether it is discriminatory under the Withdrawal Agreement, EU law or the EU27 countries’ national law, and whether there is a distinction between UK nationals per se and UK nationals legally living in the EU who are covered by the Withdrawal Agreement.
We aim to lobby the “Specialised Committee on Citizens’ Rights between the European Commission and the UK Government”, which is considering these matters. We want self-employed UK nationals, legally resident in the EU prior to Brexit, to be able to continue to work across EU borders. We believe we are a distinct cohort which exercised our previous rights to freedom of movement. These rights are specifically limited by the Withdrawal Agreement, putting us in a worse position than third-country nationals such as US journalists. To deny us our means of earning a living because we chose to live here would be discriminatory.
We aim too to lobby members of the European Parliament. The first point of contact might be EU-UK Friendship Group Co-Chaired by Terry Reintke, Natalie Loiseau, Radek Sikorski and Katarina Barley.
There is a difference between the following categories: i) a person who resides in State A and pursues an activity as a self-employed person in State B; and ii) a person who resides in State A and pursues an activity as a self-employed person in State A while also providing services in States B and C – either through the occasional provision of services or through the secondary establishment. The first category corresponds to that of a frontier self-employed person while the second category does not.”